Supreme Court Act

Section 1. Short title Section This Act may be cited as the Supreme Court Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Chief Justice" means the Chief Justice appointed under Article 166 of the Constitution; "Chief Registrar" deleted by Act No.26 of 2022, s. 2 (a) ; "Court" means the Supreme Court of Kenya as established under Article 163(1) of the Constitution; "Deputy Chief Justice" means the Deputy Chief Justice appointed under Article 166 of the Constitution; “petition” means a petition filed under Articles 58(5), 163(3) and (4) and 168(8) of the Constitution; "preliminary procedures" means presentation made before a single judge, a two-judge bench, or the Registrar, on a matter preparatory in nature; "president" means the president of the Supreme Court; “proceedings” means presentation made before the Court under Article 163(2) of the Constitution for final determination on a matter; "Registry" means the registry where all pleadings and supporting documents and all orders and decisions of the Court are recorded and maintained in accordance with the rules; "Registrar" means the Registrar of the Supreme Court appointed pursuant to section 9 and includes a deputy registrar; "rules" mean the Rules of the Supreme...

Section 3. Object of the Act Section assert the supremacy of the Constitution and the sovereignty of the people of Kenya;

Section 3A. Inherent powers of the Court Section Nothing in this Act shall be construed to impair the powers of the Court to make such orders or provide such directions as may be necessary for the administration of justice. [Act No. 26 of 2022 , s. 4.]

Section 4. Vacancy not to affect jurisdiction Section Subject to Article 163 (2) of the Constitution, a vacancy in the Supreme Court shall not affect the jurisdiction of the Court. [Act No. 26 of 2022 , s. 5.]

Section 5. Order of precedence of judges of the Supreme Court Section 5(1) As the head of the Judiciary, the Chief Justice shall have precedence over the other judges of the Supreme Court. Section 5(2) The Deputy Chief Justice shall take precedence immediately after the Chief Justice. Section 5(3) The other judges of the Supreme Court shall take precedence among themselves, according to the dates on which they respectively took office as judges of the Supreme Court. Section 5(4) Where, under subsection (3), two or more judges of the Supreme Court took office on the same day, precedence among them shall be determined according to professional seniority with the most senior judge taking precedence.

Section 6. Presiding judge Section 6(1) The Chief Justice shall preside over the Supreme Court and in the absence of the Chief Justice, the Deputy Chief Justice shall preside. Section 6(2) If the Chief Justice and the Deputy Chief Justice are absent or unable to preside, or the offices of Chief Justice and the Deputy Chief Justice are vacant, the most senior available judge of the Supreme Court shall preside over the Court and perform any administrative duty that may be necessary for the proper conduct of the affairs of the Court. Section 6(3) The presiding by a judge over the Supreme Court pursuant to subsection (2) shall be conclusive proof of the judge’s authority to do so and no action of the Judge, and no judgement or decision of the Court shall be questioned on the ground that the necessity for the judge to preside over the Court had not arisen or had ceased. [Act No. 26 of 2022 , s. 6.]

Section 7. Procedure if judges absent Section 7(1) If at the time appointed for a sitting of the Supreme Court one or more judges are absent, the judge or judges present may adjourn the sitting on such terms as the Court thinks fit. Section 7(2) If at the time appointed for a sitting of the Supreme Court all the judges are absent, the Registrar shall adjourn the sitting until such time as the Court shall next convene.

Section 8.[Repealed by Act No.26 of 2022, s. 8.]

Section 9. Registrar of the Supreme Court Section 9(1) There shall be a Registrar of the Supreme Court who shall be appointed pursuant to Article 161(3) of the Constitution. Section 9(2) The Registrar and other officers appointed shall exercise such powers and perform such duties as may be conferred upon them upon directions of the Court, the rules of court and the directions of the Chief Justice. [Act No. 26 of 2022 , s. 9.]

Section 10. Functions of the Registrar Section 10(1)(a) the establishment and maintenance of the Registry; Section 10(1)(b) the acceptance, transmission, service and custody of documents in accordance with the rules; Section 10(1)(c) taxing costs of any proceedings before the Court as between the parties; Section 10(1)(d) certifying that any order, direction or decision is an order, direction or decision of the Court, or of the Chief Justice or other judge, as the case may be; Section 10(1)(e) causing to be kept records of the proceedings and the minutes of the meetings of the Court and such other records as the Court may direct; Section 10(1)(f) the management and supervision of the staff of the Court; Section 10(1)(g) the day to day administration of the Court; Section 10(1)(h) the management of the library of the Court; Section 10(1)(i) ensuring the publication of the judgements of the Court; and Section 10(1)(j) undertaking any duties assigned by the Court. Section 10(2) The Registrar may consider and dispose of procedural or administrative matters in accordance with the rules or on the direction of the Chief Justice. [Act No. 26 of 2022 , s. 10.]

Section 11. Reviews of decisions of the Registrar Section 11(1) A person aggrieved by a decision of the Registrar made in accordance with the rules may apply to a judge of the Supreme Court for a review of such decision. Section 11(2) The judge may confirm, modify, or reverse the decision in issue. Section 11(3) No fee shall be payable for an application under this section.

Section 11A. Case management Section case management;

Section 6A. Functions of the president Section be the head of the Court and shall, in that regard, oversee the proper management and administration of the Court;

Section 12. Determination of disputes arising out of presidential elections Section 12(1) An application to the Supreme Court in respect of a dispute to which Article 163(3)(a) of the Constitution applies shall be submitted by petition and shall further comply with the procedures prescribed by the rules. Section 12(2) The Independent Electoral and Boundaries Commission shall, within a period of forty-eight hours from the date of the service of a presidential election petition, submit to the Supreme Court certified copies of the documents used to declare the results of the presidential election, including the forms used to announce the results of the election at the polling station and the constituency tallying centre and to declare the result at the national tallying centre. [Act No. 36 of 2016 , s. 39.]

Section 13. Advisory opinion Section 13(1)(a) the national government; Section 13(1)(b) a State organ; or Section 13(1)(c) a county government with respect to a matter concerning the county government. Section 13(2) A request for an advisory opinion shall clearly state the specific questions on which the opinion of the Court is being sought. Section 13(3) The nature of opinion sought shall not be adversarial, abstract, or hypothetical. Section 13(4) The Court may, on its own motion, invite an expert whose opinion on the subject matter it deems relevant. Section 13(5) The Court may decline to assume jurisdiction on the subject matter in question, and state its reasons. Section 13(6) An advisory opinion has the same binding effect as any other decision of the Court. [Act No. 26 of 2022 , s. 13.]

Section 14.[Repealed by Act No.26 of 2022, s. 15.]

Section 13A. Determinations in a state of emergency Section 13A(1)(a) a declaration of a state of emergency; Section 13A(1)(b) any extension of a declaration of a state of emergency; or Section 13A(1)(c) any legislation enacted or other action taken in consequence of a declaration of a state of emergency. Section 13A(2) A petition under subsection (1) shall be made in accordance with the Rules made under this Act. [Act No. 26 of 2022 , s. 14.]

Section 15. Appeals to be by leave Section 15(1) Appeals to the Supreme Court shall be heard only with the leave of the Court. Section 15(2) Subsection (1) shall not apply to appeals from the Court of Appeal in respect of matters relating to the interpretation or application of the Constitution. Section 15(3) References in any written law, other than this Act, to the leave of the Supreme Court shall be construed subject to the provisions of sections 17 and 18 of this Act.

Section 16.[Repealed by Act No.26 of 2022, s. 18.]

Section 17.[Repealed by Act No.26 of 2022, s. 19.]

Section 18. Summary dismissal Section The Court may make an order for summary dismissal of a petition, a reference or an application, where it is apparent on the face of it that it is wholly defective. [Act No. 26 of 2022 , s. 20.]

Section 19.[Repealed by Act No.26 of 2022, s. 21.]

Section 15A. Appeal as of right Section Pursuant to Article 163(4)(a) of the Constitution, appeals shall lie from the Court of Appeal to the Supreme Court as of right in any case involving the interpretation of the Constitution. [Act No. 26 of 2022 , s. 17.]

Section 15B. Appeal upon certification Section 15B(1)(a) upon certification by the Court of Appeal; or Section 15B(1)(b) upon certification by the Supreme Court in accordance with Article 163(4)(b) of the Constitution. Section 15B(2) An application for certification shall be filed before, and determined by the Court of Appeal at the first instance. [Act No. 26 of 2022 , s. 17.]

Section 15C. Direct appeals from tribunals Section 15C(1) A judge of a superior court aggrieved by the decision of a tribunal made under Article 168 of the Constitution may appeal directly to the Supreme Court, within ten days after the tribunal makes its recommendations. Section 15C(2) The appeal shall be heard and determined in accordance with the procedure set out under the Rules. [Act No. 26 of 2022 , s. 17.]

Section 20. Further evidence in appeals Section 20(1) The Court may admit further evidence in determining an appeal, where the Court considers it necessary and appropriate in the circumstances. Section 20(2)(a) is directly relevant to the matter before the Court; Section 20(2)(b) is capable of influencing or impacting on the decision of the Court; Section 20(2)(c) could not have been obtained with reasonable diligence for use at the trial; Section 20(2)(d) was not within the knowledge of the party seeking to adduce the additional evidence; Section 20(2)(e) removes any vagueness or doubt over the case; Section 20(2)(f) is credible and bears merit; Section 20(2)(g) would not make it difficult or impossible for the other party to respond effectively; and Section 20(2)(h) discloses a case of wilful deception to the Court.

Section 21. General powers Section 21(1) On an appeal in proceedings heard in any court or tribunal, the Supreme Court may make any order, or grant any relief, that could have been made or granted by that court or tribunal. Section 21(2) In any proceedings, the Supreme Court may make any ancillary or interlocutory orders, including any orders as to costs that it thinks fit to award. Section 21(3) The Supreme Court may make any order necessary for determining the real question in issue in the appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgement in the appeal. Section 21(4) The Court may, on its own motion or on application by any party with notice to the other or others, correct any oversight or clerical error of computation or other error apparent on such judgement, ruling or order and such correction shall constitute part of the judgement, ruling or order of the Court. [Act No. 26 of 2022 , s. 23.]

Section 22. Power to remit proceedings Section The Supreme Court may remit proceedings that began in a court or tribunal to any court that has jurisdiction to deal with the matter.

Section 23. Exercise of powers of the Court Section 23(1) For the purposes of the hearing and determination of any proceedings, the Supreme Court shall comprise five Judges. Section 23(2)(a) change of representation; Section 23(2)(b) admission of consent; Section 23(2)(c) consolidation of matters; Section 23(2)(d) correction of errors on the face of the record; Section 23(2)(e) review of a decision of the Registrar; Section 23(2)(f) substitution of service; Section 23(2)(g) withdrawal of an advocate to cease acting for a party; Section 23(2)(h) withdrawal of a document; or Section 23(2)(i) certification of a matter as urgent. Section 23(2A)(a) the manner of hearing an application; Section 23(2A)(b) extension of time; or Section 23(2A)(c) leave to file additional documents. Section 23(2B)(a) admission of parties, friend of the Court, and any interested party; Section 23(2B)(b) substitution of parties; Section 23(2B)(c) dismissal of a matter for want of prosecution; Section 23(2B)(d) summary dismissal of proceedings; or Section 23(2B)(e) application for certification Section 23(2C) A party aggrieved by the decision of a single judge or two judges may apply for review of the decision...

Section 24. Interlocutory directions Section 24(1) Subject to this Act, in conducting any preliminary procedures, a single judge may issue interlocutory orders or directions as the judge deems fit, but such orders or directions shall not dispose of issues reserved for determination in proceedings. Section 24(2) An interlocutory order or direction issued by a single judge shall lapse after fourteen days, unless confirmed by the Court. [Act No. 26 of 2022 , s. 27.]

Section 25. Judgement of the Court Section 25(1) The judgement of the Supreme Court shall be in accordance with the opinion of a majority of the Judges hearing the proceeding concerned. Section 25(2) If the judges are equally divided in opinion, the decision appealed from or under review shall be considered as having been affirmed. Section 25(3) Where a judge presiding over a matter is not able to deliver a judgement on account of death, suspension, removal from office, retirement or infirmity, which occasions a lack of prescribed quorum in the Court, the Chief Justice may substitute such judge. Section 25(4) The incoming judge, in terms of subsection (3), shall rely on submissions and proceedings on record, as a basis for delivering judgement. [Act No. 26 of 2022 , s. 28.]

Section 26. Delivery of judgement Section 26(1)(a) in open court; or Section 26(1)(b) by physical or electronic service of the same to the parties. Section 26(2) Where a matter is heard before the Supreme Court and judgement reserved for delivery on another day, it shall not be necessary for all the judges before whom the matter was heard to be present in court on the day appointed for the delivery of judgement. Section 26(3) Deleted by Act No.26 of 2022, s. 29. Section 26(4) Deleted by Act No.26 of 2022, s. 29. [Act No. 26 of 2022 , s. 29.]

Section 27. Decisions of the Court may be enforced by the High Court Section A judgement, decree, or order of the Supreme Court may be enforced by the High Court as if it had been given or made by the High Court.

Section 28. Contempt of Court Section 28(1)(a) assaults, threatens, intimidates, or wilfully insults a judge of the Supreme Court, the Registrar of the Court, a Deputy Registrar or officer of the Court, or a witness, during a sitting or attendance in Court, or in going to or returning from the Court; or Section 28(1)(b) willfully interrupts or obstructs the proceedings of the Supreme Court, in the Court; or Section 28(1)(c) willfully and without lawful excuse disobeys an order or direction of the Supreme Court in the course of the hearing of a proceeding, Section 28(2) A police officer, with or without the assistance of any other person, may, by order of a judge of the Supreme Court, take into custody and detain a person who commits an offence under subsection (1) until the rising of the Court. Section 28(3) The Supreme Court may sentence a person who commits an offence under subsection (1) to imprisonment for a period not exceeding six months, or to pay a fine not exceeding one million shillings, or to both, for every offence. Section 28(4) For avoidance of doubt, the Court has inherent powers to punish any person for contempt, in any other case to which this section does not appl...

Section 29. Seal of the Supreme Court Section The seal of the Supreme Court shall be such device as may be determined by the Supreme Court and shall be kept in the custody of the Registrar.

Section 30. Representation before the Supreme Court Section Parties may appear in person or be represented by an advocate in all proceedings before the Supreme Court.

Section 31. Rules Section regulating the sittings of the Supreme Court and the selection of judges for any particular purpose;

Section 21A. Review of own decision Section where the judgement, ruling or order was obtained through fraud, deceit or misrepresentation of facts;

Section 23A. Stay of proceedings Section 23A(1)(a) instituted a petition of appeal as of right under Article 163(4)(a) of the Constitution; or Section 23A(1)(b) obtained a certification under Article 163(4)(b) of the Constitution and instituted a petition. Section 23A(2) An application under subsection (1) shall only be made after filing the petition before the Court. [Act No. 26 of 2022 , s. 26.]

Section 29A. Nomination of Court representatives Section conduct of the election of the representative of the Court to the Judicial Service Commission; and

Section 29B. Committees of the Court Section The Court may establish committees for the purpose of efficient management of its affairs, including the welfare of the judges and staff of the Court. [Act No. 26 of 2022 , s. 31.]

Section 29C. Alternative Dispute Resolution mechanisms Section 29C(1) In the conduct of proceedings, the Court shall promote and encourage alternative dispute resolution mechanisms, in accordance with Article 159(2)(c) of the Constitution. Section 29C(2) Reference of a matter to alternative dispute resolution may be initiated by the Court on its own motion, or at the request of the parties. [Act No. 26 of 2022 , s. 31.]

Section 29D. Court sittings and recess Section 29D(1) The Court shall have three sittings in every year. Section 29D(2)(a) from the 14th January to the second Wednesday before Good Friday; Section 29D(2)(b) from the first Wednesday after Easter Week to the 31st July; and Section 29D(2)(c) from the 16th September to the 20th December.

Section 29E. Ethics and integrity Section Every judge of the Court shall sign and ascribe to the Judicial Code of Conduct. [Act No. 26 of 2022 , s. 31.]